Awadhesh And 3 Others vs State Of U.P. And Anr.
2014 Latest Caselaw 3936 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 14
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 12523 of 2014
 
Petitioner :- Awadhesh And 3 Others
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Petitioner :- R.P.S. Chauhan,Raj Narayan Gupta
 
Counsel for Respondent :- Govt. Advocate,K.K.S. Chauhan
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Heard learned counsel for the petitioners, learned counsel for respondent no. 2 and learned A.G.A.

This writ petition has been preferred with the prayer to quash the impugned order dated 19.12.2012 passed by A.C.J.M., 17th Etah in criminal case no. 138 of 2008, case crime no. 305 of 2008, under Section 364 I.P.C., P.S. Jaithara, District Etah and order dated 08.07.2014 passed by Additional Session / Special Judge SC/ST Act (P.A.) Etah in criminal revision no. 205 of 2013.

Brief facts are that the complainant Smt. Munni Devi had lodged a report with the allegation that on 28.08.2008 at about 09:00 A.M. Awadhesh came to her house and had lunch at her house. At about 05:00 P.M. he took her husband Satyaram on account of some work at Dhumari and stated that he will return tomorrow. The next day when her husband did not return, she went to the house of Awadhesh where the inmates of Awadhesh told that they are with each other and they have gone to Aliganj from Dhumari. She awaited for another two days but her husband did not return. He again went to the village of Awadhesh where she was told that Awadhesh is living in the village. So, she started searching for her husband then Ajaipal and Satyendra of the village told her that on 28.08.2008 at about 05:30 P.M. they had seen Awadhesh along with Kashmir Singh, Satyaram, Kripal Singh and Pramod. She felt that her husband was kidnapped for murder by Awadhesh. She gave an application at the police station to register a case but the case was not registered. Then she presented the application before S.S.P. at which the case was registered but the I.O. did not record her statement and send the final report.

The complainant filed a protest petition against the final report. Learned Magistrate on perusal of the case diary and after hearing the counsel for the complainant and perusal of the affidavits of witnesses Ajaipal and Satyendra, allowed the protest petition and, orders, for further investigation on 19.12.2012 were passed. Revision was preferred against this order being criminal revision no. 205 of 2013 which was dismissed on 08.07.2014.

It has been argued by the counsel for the petitioners that the Magistrate had no right to proceed in the way, he has proceeded as order is based on conjectures and surmises and is not tenable in law. It has further been argued by the counsel or the petitioner that the Magistrate could have treated the protest as a complaint and thus he should have recorded the evidence of all the witnesses and only then he should have summoned the accused.

Counsel for the petitioner has placed reliance upon 2004 (50) ACC page 650 (Gangadhar Janardan Mhatre vs. State of Maharashtra) in which it has been held that :-

"When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (i) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(l)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(l)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officers gives an opinion that the investigation has made out a case against the accused.' The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(l)(b and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(l)(a) though it is open to him to act under Section 200 or Section 202 also. (See M/s. India Sarat Pvt. Ltd. \. State of Karnataka and Another, AIR (1989) SC 885. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the Informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code of issue of a notice in that regard."

He has further placed reliance upon 1967 Law Suit (SC) page 141 (Abhinandan Jha vs. Dinesh Mishra) in which Hon'ble Apex Court has laid down that if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3).

Thus, it is clear that it is very well within the jurisdiction of the Magistrate to order further investigation after perusal of the protest petition and the case diary.

Counsel for the petitioners have argued that the learned Magistrate has also considered the affidavit of witness Ajaipal as is evident from the order. I do not think that would make much of difference because in 1998 (37) ACC page 136 (Supreme Court) (K. Chandrashekhar and others vs. State of Kerala) it has been held that in such cases further investigation can be ordered. Though as held by the court in Jamuna Vs. State of Bihar, AIR 1974 SC 1822, the duty of the investigating agency is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.

Counsel for the petitioners has also relied upon 2001 (43) ACC page 1096 (Pakhandu vs. State of Uttar Pradesh) in which Hon'ble Apex Court has laid down that :-

"There are four more methods of taking cognizance of offences by the Court competent to try the same. The Court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complainant or in some other manner the Court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate.

When a Magistrate receives a complaint or an application under Section 156(3), Cr.P.C. which otherwise tantamount to complaint under Clause (d) of Section 2 of the Code, there are two courses open to him. He may take cognizance under Section 190(1)(a) by applying his mind to the facts of the case. In that event he has to proceed in the manner provided in Sections 200 and 202, Cr.P.C. by virtue of Section 200 he is required to examine the complainant and the witnesses present, if any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process under Section 204. However, if the Magistrate is not satisfied, he may either dismiss the complainant under Section 203 Cr.P.C. or postpone the issue of process and take recourse to Section 202 which provides that he may inquire into the case himself or my direct an investigation to be made by a police officer or such other person as he thinks fit, for the purpose of deciding whether or not there are sufficient grounds to proceed. But if the offence is triable exclusively by a Court of Session, the Magistrate cannot make a direction for investigation. It is only where the Magistrate decides to hold the inquiry himself that the proviso to sub-section (2) of Section 202, which we extract below, would come into operation:

"Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath."

5. The other course open to the Magistrate is that instead of taking cognizance, he may send the complaint/application under Section 156(3) Cr.P.C. for police investigation. If the course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157 onwards. If upon investigation the police came to the conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify the forwarding of accused for trial and submitted final report for dropping the proceedings, following courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may required:

(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;

(II) He may take cognizance under Section 190(1)(b)and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed;

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a)  upon the original complainant or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued."

Counsel for the opposite party no. 2 has placed reliance in 2004 (49) ACC page 345 (Anil Kumar Chauhan vs. State of U.P. and another) in which Pakhandu vs. State of Uttar Pradesh (Supra) has been referred.

Thus, the Magistrate did not commit any illegality in directing the police to further investigate the case.

Section 173 (8) Cr.P.C. reads as follows:-

"173 (8)-Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."

There is no doubt that the Magistrate cannot direct the police to submit charge sheet or the final report but the Magistrate can certainly order further investigation by the investigating agency.

The disputed question of fact or the defence of the accused could not be considered in exercise of the extraordinary jurisdiction under Article 226 of the Constitution. I do not think, there is any irregularity, illegality or impropriety in the orders assailed in the writ petition.

Accordingly the writ petition deserves to be dismissed.

However, if the accused surrenders before the court below and apply for bail, his bail application will be dealt with in accordance with law as has been laid down in Amrawati's Case.

Order Date :- 2.8.2014

sailesh